Sica v. United States

• Decision Date: 13 January 1964
• Docket Number: No. 18011.,18011.
• Parties: Alfred G. SICA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

325 F.2d 831 (1963)

Alfred G. SICA, Appellant, v. UNITED STATES of America, Appellee.

No. 18011.

United States Court of Appeals Ninth Circuit.

November 18, 1963.

As Amended on Denial of Rehearing January 13, 1964.

Russell E. Parsons, Los Angeles, Cal., and G. Vernon Brumbaugh, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief Criminal Section, and Robert E. Hinerfeld, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before JERTBERG and DUNIWAY, Circuit Judges, and FOLEY, District Judge.

DUNIWAY, Circuit Judge.

Sica was adjudged guilty upon the verdict of a jury, of a violation of 18 U.S.C. § 1001 and he appeals.¹ The charge was that:

"On or about the 13th day of November, 1958, * * * he did wilfully and knowingly falsify, conceal, and cover up a material fact and make a false, fictitious, and fraudulent statement and representation in a matter within the jurisdiction of the Internal Revenue Service of the Treasury Department, a department and agency of the United States, in that he stated to said department and agency that:

"`Since Mr. Michael Cohen was released from prison on October 9, 1955, I have been a personal friend of Mr. Cohen and associated with him in a purely social manner.

"`Since January 1, 1955, I have not received any moneys from Mr. Cohen; nor have I paid any moneys to Mr. Cohen. During the period January 1, 1955, to date, I have not received any moneys from anyone acting on Mr. Cohen\'s behalf; nor have I paid any moneys to anyone on Mr. Cohen\'s behalf.

"`During the period January 1, 1955, to date, I have had no business connections or negotiations with Mr. Cohen, directly or indirectly. * *

"`During the period January 1, 1955, to date, I have made no substantial gifts to Mr. Cohen; nor has Mr. Cohen made any gifts to me, other than a wrist watch as a birthday gift in September 1957.

"`During the period January 1, 1955, to date, I have made no loans to Mr. Cohen; nor did he make loans to me.

"`During the period January 1, 1955, to date, I have participated in no financial transactions to which Mr. Cohen also was a party.\'"

Sica was represented at the trial by experienced counsel of his own choice and is represented by the same counsel on appeal. Two contentions are made: first, that the evidence was insufficient to sustain the verdict, and second, that there was error in receiving in evidence a letter, Exhibit 10, and three checks, Exhibits 11, 12, and 13. We conclude that the evidence is sufficient and that there was no error or prejudice in receiving the exhibits in question.

The statements quoted above from the indictment were made by Sica in an affidavit. The record shows, largely by stipulation, that the Intelligence Division of the Internal Revenue Service of the Treasury Department was investigating the income tax liability of one Michael Cohen; that agents of the Service met with Sica; that they informed him that they were conducting an investigation into Cohen's tax liability and financial status; that they wanted an affidavit from Sica covering the financial transactions and anything he knew about it; that they questioned him, and agent Crabtree took notes; that Crabtree then prepared the affidavit which was submitted to Sica, who checked it with his attorney and then told the agents that his attorney had "okehed" his signing the affidavit; that he then did so and delivered it to the agents.

Counsel objected that the facts stated in the affidavit were not "material" within the meaning of 18 U.S.C. § 1001.² They agreed, however, that, to quote one of them, the materiality was "a matter for the court to determine." The court overruled the objection.

The foregoing facts had been presented to the court in the absence of the jury. When government counsel offered evidence to prove them, the court replied in part: "I don't think we need to call them the witnesses in view of the stipulation. That is a matter on which the court will instruct the jury." Defense counsel made no objection. The court, in instructing the jury, stated to them: "Materiality is a question for the court, and I charge you as a matter of law that the statements alleged in Count Two of the Indictment were pertinent to the issue pending within the jurisdiction of the Internal Revenue Service." When the jury had been fully instructed, the court asked counsel to approach the bench, at which time the following statements were made:

"MR. SHERIDAN: The government has no exceptions.

"MR. PARSONS: We have none, Your Honor."

The government sought to show, entirely by circumstantial evidence, that Sica had been associated with Cohen in a business way rather than in a purely social manner, and that, directly or indirectly, he had received moneys from Cohen or from persons acting on Cohen's behalf, and that he had had business connections with Cohen.

Various witnesses testified to the following facts: In November of 1957, there existed in Los Angeles what the witnesses described as "a competitive situation" between Coast Cigarette Service and Rowe Cigarette Service. Both companies were attempting to obtain locations for their automatic cigarette vending machines and were paying push money in the form of "bonuses" and "advances." One Breen, a salesman for Coast, was approached by Sica who said that he could get some locations for Coast and that he thought his services would be worth $25,000 to Coast. One Carr, manager of Coast, testified that men from Coast's parent company had come from outside the Los Angeles area to help Coast in the competition. Carr had also retained a private investigator named Otash.

A witness named Harry Rudolph, better known as Babe McCoy, who was once Cohen's manager when the latter was a boxer, met in New Orleans with Vaughn and Angelo, employed by a company affiliated with Rowe. Vaughn and Angelo then came to Los Angeles and McCoy arranged for them to meet in his apartment with Cohen and Sica. Vaughn was dead at the time of the trial, but Angelo testified that the trip to Los Angeles was in connection with the competitive situation between Rowe and Coast and that Angelo worked in Los Angeles under the direction of one Seedman, president of Rowe, as a salesman attempting to obtain locations for Rowe. It was stated at the meeting that Coast was trying to get Cohen to help Coast against Rowe and that Vaughn, although not interested in employing Cohen, was interested in having Cohen remain neutral and not hurt Rowe in any way. So far as appears, although Sica was present during the entire discussion, he said nothing. That same evening, Angelo, Cohen, Sica and Vaughn had dinner together, and Angelo saw Cohen and Sica subsequently several times, about five.

Seedman testified that he was instrumental in persuading Vaughn to come to Los Angeles. On November 27, 1957, he drew a check on his company's account, payable to himself, in the sum of $5,000. He cashed it at a bank, receiving $100 bills. He put the money in a plain envelope and handed it to Vaughn. The two then proceeded to a restaurant where they met Sica. Later Cohen arrived. Vaughn handed the envelope containing the money to Cohen. Cohen said that it "should be Fred's," or words to that effect ("Fred" meant Sica). The envelope was passed to Sica.

Otash, who had been employed by Carr as a private investigator for Coast, testified that his work related to the location of cigarette vending machines and that in connection with this work he made certain recordings which he played for Seedman and Cohen. Sica was not present when this occurred. Later Vaughn, who, as we have seen, worked for Rowe, handed Cohen five $100 bills which Cohen handed to Otash. This was also at a restaurant and Sica was in the restaurant, but not at the table.

Vaughn returned to Los Angeles in December, and Seedman saw Cohen and Sica at Vaughn's room. Later, Seedman reimbursed Vaughn for the expenses incurred by Vaughn on his trip to Los Angeles in the sum of $3,558.53. This was pursuant to a statement contained in a letter from Vaughn to Seedman which is Exhibit 10, about which appellant now complains. Exhibit 11 is the check that Seedman gave Vaughn. Seedman also drew a check on his company payable to himself in the sum of $3,000. This is Exhibit 12. He then drew a check on his own bank account in the same amount and gave it to Vaughn. This is Exhibit 13. These two checks, according to Seedman, were made in response to Exhibit 10 which refers to "$3,000 advanced to M.C." Seedman also identified another Rowe check for $500 payable to Vaughn as having been given to Vaughn in connection with the Otash transaction. One Gritz, an attorney, testified that he obtained from Vaughn $3,000 which he delivered to Cohen; Cohen testified that he received $3,000 from Vaughn.

In summing up the testimony in a memorandum prepared at the time when it denied Sica's motion for judgment of acquittal and motion for a new trial, the trial court remarked that some of the witnesses were obviously reluctant, and concluded that the evidence shows that Sica did participate in financial transactions to which Cohen was also a party and did associate with Cohen in other than a purely social manner. We agree with the trial court that the most telling evidence is the payment of $5,000 to Sica by Seedman, or by Vaughn, through or upon the instructions of Cohen. The trial court also stated: "The court and jury would be naive indeed to conclude that the defendant's participation in these various meetings was in `a purely social manner.'" We agree. We are satisfied that, viewing the evidence in the light most favorable to the government,³ the verdict is supported.

There is no merit in the argument that, because Sica was also indicted in another count for violating 26 U.S.C. § 7201 by willfully filing a false income tax return, in failing to report as income the $5,000 received from Seedman through Vaughn or Cohen, and was...